In April, the University of Arkansas became the first school in the country to admit the obvious: Procedures promulgated in 2020 by former Education Secretary Betsy DeVos might have prevented an unjust finding of guilt in a campus sexual-assault case. In a letter to a student identified only as John Doe, the university’s coordinator for Title IX—the 1972 law that prohibits sex-based discrimination in any educational institution that receives federal money—acknowledged that, “given the closeness of the evidence in the case, the revised procedures could have led to a different outcome” for Doe. “Different outcome” is a euphemism for exoneration, avoiding a conviction by a star chamber that could have ruined this young person’s life.

Doe’s lawsuit arose out of an October 2017 incident. A female student, attending a campus party, commenced a text exchange with Doe, a casual acquaintance. The two decided to hang out, and the female student texted that she would take an Uber to Doe’s residence. She arrived and the two students had sex. At this point, the accounts diverged. The female student claimed she was incapacitated by alcohol and could not have consented. Doe said she consented but got angry when he told her afterward that he wanted to go meet friends.

The female student subsequently filed both a criminal complaint with the Fayetteville Police and a Title IX complaint with the university. The police ultimately concluded that no charges were warranted. The university investigation likewise ended with a not-guilty finding.

These decisions reflected the powerful exculpatory evidence that existed for Doe. The Uber driver remembered nothing untoward about the accuser. Doe’s roommate recalled hearing the accuser shouting and not slurring her words at the apartment. The accuser’s texts from the evening showed no incapacitation; she used normal content and grammar. And the police detective who investigated the case noted multiple inconsistencies between what the accuser had told university officials and what she had presented to law enforcement.

Before 2011, these twin findings would have ended the affair. But Obama-era guidance required schools to allow Title IX complainants to appeal not-guilty findings. The accuser in the Arkansas case exercised that right. Two things changed during this appeals process. First, the accuser launched a public protest, carrying a bedsheet around campus to fault the Title IX office for not taking her allegation “seriously.” Her campaign attracted favorable press coverage, a supportive Facebook group, and backing from other students. Second, the accuser modified her theory of the offense, suggesting that the assault might also have occurred “by force.” The Title IX coordinator told Doe he would need to wait for the appeals hearing itself to learn the factual basis for this conveniently revised theory. It was this sort of incomplete notice that the regulations later issued by DeVos would prohibit.

In April 2018, the university’s appeals committee heard from both students—but wouldn’t allow Doe or his lawyer to cross-examine the accuser. By a 2–1 vote, the committee concluded that “at some undetermined point of time” in the evening the accuser had become incapacitated, and that she had not consented. Then—almost as if the real purpose of the determination was appeasing the protesters by vindicating the accuser’s allegation—the school imposed a token punishment on Doe of 10 hours of community service. The protests ended. The Facebook page went dormant. The university even awarded the accuser a certificate for her efforts.

Doe sued. The district court sided with Arkansas, but the Eighth Circuit Court of Appeals addressed his Title IX claim with one of the broadest rulings from any of the hundreds of accused-student lawsuits in this area. The court identified three elements that undermined a plausible gender-discrimination claim. First, the university, based on the facts presented in the complaint, reached “an outcome that was against the substantial weight of the evidence.” Second, the peculiarly light punishment suggested a procedural irregularity. Third, the decision came amid public pressure, including the accuser’s protests, for Arkansas to find more accused male students guilty of sexual offenses.

The procedural irregularity and the pressure the school faced were matters of public record, which made them difficult to challenge in trial. And as Arkansas itself conceded, trying to defend the guilty finding required overlooking the contrary findings of its own Title IX coordinator and a local police detective. Unless it chose to settle, the university’s options moving forward were limited.

It might have been expected that students and faculty would be outraged to learn that both a federal Appeals Court and their own university expressed concerns that due to gender bias, the school might have incorrectly found a student guilty. Outrage was expressed on the Arkansas campus—but of a very different type. The protesters denounced the university’s decision to settle the lawsuit at all.

Responding to a tweet from the accuser, Julia Nall, the outgoing student-government president, described the settlement as “one of a series of disappointing and inadequate decisions” by the university. Nall and her successor, Coleman Warren, teamed with the accuser to promote a petition condemning the university for not “going to court.” (Arkansas, of course, had gone to court—it just didn’t get the result it wanted.) As penance for the university’s sin of settling a case it seemed likely to lose, the petition demanded that Arkansas make “a $20,001 donation to efforts supporting survivors”; install campus-wide use of the Callisto app, which allows students to file sexual-assault allegations anonymously; hire more “trauma-informed” Title IX officials; and inform accusers of the status of lawsuits arising from their cases. Some 1,500 people signed the petition.

Local media sympathetically covered the protests while steering clear of presenting Doe’s version of events. In nearly 1,500 words on the episode, the Chronicle of Higher Education, the academy’s leading trade publication, originally avoided even mentioning the Eighth Circuit opinion that prompted the settlement—even as it asserted, without qualification, that Doe had “harmed” the accuser. After criticism on Twitter, the Chronicle added a “clarification” acknowledging the court’s opinion and stealth-edited any reference to Doe’s harming anyone.

University of Arkansas Chancellor Joseph Steinmetz could have reminded protesters that a process violating an accused student’s rights undermined the university’s commitment to discerning the truth and thus harmed all sides. Instead, the cowed administrator met with the accuser and quickly agreed to the petition’s demands. The university additionally promised to reorganize its Title IX office under a new coordinator. This response, ironically, confirmed one of the Doe lawsuit’s key arguments: that the Arkansas administration, like that of most colleges and universities, lives in fear of campus protests contending that its policies insufficiently favor Title IX accusers. Nall recognized where the power on campus now lies, urging protesters not to “stop applying pressure.” Students like Doe, it seems, should and would be sacrificed for the greater good.

The Arkansas case featured an atypically stark fact pattern. Few Title IX controversies combine a major Appeals Court decision, a university concession that it might have gotten things wrong, and a detective supplying evidence bolstering the accused student. That even these facts generated frenzied complaints that the university hadn’t sufficiently accommodated accusers speaks volumes about the typical campus approach to Title IX.

Not a single Arkansas student or faculty member has publicly urged the university to investigate its past adjudications to ensure that Doe was the only student to experience an unfair process. University spokesperson Mark Rushing confirmed that Arkansas would not, on its own, perform such an audit.

Six days before Arkansas admitted that the existing Title IX regulations might have prevented an injustice for one of its students, the Education Department’s Office for Civil Rights announced plans for a “comprehensive review” of those same regulations. The move represented the first step in redeeming Joe Biden’s campaign promise to resurrect Obama-era Title IX procedures.

In the past decade, few issues in higher education have aroused more controversy than campus sexual assault. In 2011, Barack Obama’s Department of Education issued guidance requiring colleges to adjust their procedures to make it more likely that an accused student would be found guilty. Civil libertarians, including groups of law professors at Harvard and Penn, criticized the resulting unfairness; one federal judge compared the resulting system to Salem in 1692. Shortly after taking office in 2017, Betsy DeVos committed to prioritizing fairer adjudication procedures. Democratic legislators labeled her efforts “despicable” and “perverse”; Biden analogized DeVos’s defenders to “those Nazis marching” in Charlottesville.

In sharp contrast to the haphazard approach that characterized many Trump regulatory actions, DeVos sought public comment for her proposals, which were closely tailored to existing case law. The new Title IX regulations, which went into effect in August 2020, thus far have withstood legal challenge. They ensure that students who report a sexual assault receive a wide variety of supportive services. They also still require schools to adjudicate sexual-assault allegations, only now through more balanced procedures. Colleges must provide accused students with written notice specifying the allegations against them. Both accusing and accused students must then receive access to all evidence gathered in the campus investigation and a hearing where a lawyer or advocate for each student can cross-examine adverse witnesses.

These provisions challenged a critical assumption that guided the Obama, and now Biden, Title IX policy: that tilting procedures in favor of complainants encourages more victims to report. Biden, moreover, long has maintained that despite their reputation as left-leaning enclaves on gender-related issues, colleges and universities actually prefer to sweep sexual-assault allegations under the rug. This situation, Biden has explained, requires aggressive federal intervention to stand “on the side of survivors.” Of course, as the Arkansas case shows, simply assuming that all accusers are “survivors” can lead to unjust results.

There certainly are instances (Louisiana State University is the most recent example) of colleges ignoring sexual assault allegations against athletes whose enrollment provided a financial windfall for the school. But the vast majority of accused students aren’t star football or basketball players. The Arkansas campus environment that Doe confronted more resembled Duke during the 2006 lacrosse case, in which three young student-athletes were arrested on a false charge of gang rape, or the University of Virginia in 2014 following a now-retracted Rolling Stone article libelously alleging a rape on campus. In those cases, administrators and faculty seemed desperate that their students be guilty of heinous crimes, only to see the allegations exposed as fraudulent.

The Arkansas ruling was one of four Appeals Courts opinions favorable to accused students in the past year; the universities in the other three cases (Oberlin, Arizona State, and University of the Sciences) also settled. Each of these decisions relied on a pathbreaking 2019 opinion in the Seventh Circuit authored by now–Justice Amy Coney Barrett, which simplified the pleading standard for accused students alleging gender discrimination. The Arizona State and Oberlin courts, like the Eighth Circuit in the Arkansas case, also seemed perplexed by the underlying rationale for the university’s guilty findings. Nothing in these rulings supports Biden’s belief that the federal government needs to do more to pressure schools to stand “on the side of survivors.”

The editorial boards of both the Washington Post and the Los Angeles Times—hardly habitual critics of the Biden administration—have cautioned against abandoning the procedural protections from the DeVos regulations. Former Democratic presidential candidate Michael Bloomberg has expressed similar sentiments.

Biden officials, however, are not listening to them. The administration announced that Catherine Lhamon, the Obama administration’s point person on Title IX from 2013 through 2016, would return to her role overseeing federal policies toward campus sexual assault. FIRE, the campus civil-liberties organization, recognized that the nomination signaled that Biden “would rather colleges go back to old, failed policies . . . than pursue Title IX policies that take the rights of all students into account,” thereby reviving the “discredited practice of trampling student rights.”

The removal of a federal mandate for fair procedures would leave campus administrators, like those at Arkansas, as the primary guarantors that a student facing a Title IX adjudication will receive a fair shake. The recent events in Fayetteville provide scant reassurance.

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